IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30527

LATRINA D. THOMAS, Tutrix, on behalf of Ka’Dary Da’Shun Thomas,

Plaintiff–Appellee,

v.

SCOTT NUGENT, individually and in his official capacity as police officer for

the City of Winnfield,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:08-CV-1167

Before JOLLY, GARZA, and OWEN, Circuit Judges.

PER CURIAM:*

Latrina D. Thomas brought suit on behalf of her minor son seeking

damages for the death of her son’s father, Baron Pikes. The district court denied

Officer Scott Nugent’s assertion of qualified immunity as to Thomas’s excessive

force claim. We reverse and remand for dismissal of the claims against Nugent.

United States Court of Appeals

Fifth Circuit

F I L E D

August 28, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I

Thomas contends thatOfficer Nugent used excessive force when Pikes was

tased eight times on the evening that Nugent and another officer, Cargyle

Branch, arrested Pikes. An active felony warrant for Pikes’s arrest was

outstanding when Officer Nugent spotted Pikes as he was walking along a

sidewalk. Nugent called for backup. He had prior dealings with Pikes and

considered him a flight risk. Officer Branch arrived in a separate vehicle, and

when Branch stepped out and tried to speak to Pikes, Pikes ran. The ensuing

foot chase lasted approximately three minutes and ended when Officer Branch

pointed his firearm at Pikes and ordered him to the ground. Pikes complied, and

the officers handcuffed him. Pikes was breathing heavily. 

The officers then directed Pikes, who was six feet tall and weighed 247

pounds, to stand up, but he refused to comply. A witness at a nearby business

heard Pikes say, “oh, ya’ll just drag me, take me, carry me.” This witness heard

the officers repeatedly ask Pikes to get up and walk, and when Pikes did not

accede, the officers said that they would count to three, then tase him. They

counted to three, and when Pikes did not arise, they again asked him to get up

and walk and told him that they would count to three again, which they did. 

After counting to three a second time and yelling “taser, taser” without

movement on Pikes’s part, they then tased Pikes in “drive stun” mode in the

middle of Pikes’s back. This mode of delivery is utilized as a compliance

procedure because it causes temporary and localized pain, as opposed to “probe

mode,” which results in incapacitation.

The officers contend that Pikes rolled away from the first administration

of the taser in stun mode and that the taser device then deployed “at point blank

range.” Thomas contends that the probes pierced Pikes’s flesh and that he

received a “probe mode” shock, though Thomas concedes that all taser shocks

except for this one were in drive stun mode. We accept Thomas’s version of the

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facts as true.1 Pikes then got up and walked about ten feet before falling to his

knees. Nugent gave another verbal warning and administered another drive

stun (the second stun) to the middle of Pikes’s back. Nugent told Pikes that if

he did not get up, Nugent would tase him again. Pikes did not comply, and

Nugent tased Pikes a third time in drive stun mode. Nugent and Branch then

tried to lift Pikes, but he refused to get up and told the officers that he would not

go with them. After ordering Pikes to get up several more times, and issuing

another verbal warning, Nugent tased Pikes for a fourth time in drive stun

mode.

Pikes then stood up and walked as far as a concrete barrier but stopped

at that barrier and laid across it, asking the officers to leave him there so that

he could die. The officers ordered him to get up so that they could get him into

a law enforcement vehicle and, after warning him, tased him a fifth time in drive

stun mode. He did not comply, and the officers repeated this sequence, stunning

Pikes a sixth time in drive stun mode. At that point, Pikes said that he would

go, the officers helped him up, and he walked until he came to a parking lot, at

which point he fell down. Pikes asked for help to get up, the officers assisted

him, and he was placed into Officer Branch’s vehicle. Approximately twelve

minutes had expired since Pikes was handcuffed.

During the drive to the police department, Pikes told Branch, “I’m dead

anyway, I’m dead anyway.” Upon arrival at the police department, Pikes would

not exit the vehicle, saying that he “wanted to stay in the car so he could die.” 

Nugent performed a spark test on the stun gun device thinking that it might

1 Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013) (citing Haggerty v. Tex. S.

Univ., 391 F.3d 653, 655 (5th Cir.2004) (“In an interlocutory appeal in which the defendant

asserts qualified immunity, to the extent that the district court found that genuine factual

disputes exist, we accept the plaintiff's version of the facts (to the extent reflected by proper

summary judgment evidence) as true.”)).

.

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motivate Pikes. When Pikes did not exit, Nugent warned him that he would tase

him and did so, in drive stun mode, to Pikes’s upper right chest, by his shoulder. 

While being tased (for the seventh time), Pikes said that he would get out, and

Nugent stopped the shock after two seconds rather than allowing the device to

complete an automatic five second cycle.

Nugent helped Pikes out of the vehicle, and Pikes dropped to the ground. 

Nugent asked Pikes to get up and Pikes responded that he would not. Nugent

again warned him and then administered another, the eighth and last, shock in

drive stun mode to the middle of Pikes’s back.

Pikes did not respond, and Nugent and another officer picked him up and

“had to drag him” into the police department building. They placed him in a

chair, but Pikes fell off the chair more than once. When Nugent asked Pikes

what drugs he had taken, Pikes said that he had taken PCP and crack, but

subsequent analysis showed only marijuana in his system. Pikes was “breathing

kind of heavy,” and Nugent immediately requested an ambulance.

Paramedics arrived and found Pikes on the floor, unresponsive. After

being administered a sternum rub, Pikes regained consciousness and mumbled

a few words. Paramedics attached heart monitor leads, but Pikes stopped

breathing while the paramedics were placing blood pressure cuffs on him. 

Paramedics began resuscitation efforts and continued them as Nugent drove the

ambulance to the hospital. Pikes was “flat lining” at this point. After treatment

at the hospital for about an hour, Pikes was pronounced dead. An autopsy

revealed that Pikes’s red blood cells had sickled before his death. The officers

did not know that Pikes had sickle cell anemia. However, the cause of Pikes’s

death is not at issue.

Thomas sued Officer Nugent, alleging that he violated Pikes’s

constitutional rights under the Fourth and Fourteenth Amendments by using

excessive force and because he was deliberately indifferent to Pikes’s need for

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medical attention. Officer Nugent moved for summary judgment on the ground

of qualified immunity. Although the district court granted the motion as to the

deliberate indifference claim, it denied summary judgment as to excessive force. 

Officer Nugent now appeals this denial of summary judgment. 

II

“The denial of a motion for summary judgment based on qualified

immunity is immediately appealable under the collateral order doctrine ‘to the

extent that it turns on an issue of law.’”2 This means that when “the district

court finds that genuinely disputed, material fact issues preclude a qualified

immunity determination, this court can review only their materiality, not their

genuineness.”3“Whether there are material issues of fact is reviewed de novo.”4

III

“The doctrine of qualified immunity serves to shield a government official

from civil liability for damages based upon the performance of discretionary

functions if the official’s acts were objectively reasonable in light of then clearly

established law.”5 This privilege “is an immunity from suit rather than a mere

defense to liability;” accordingly, “it is effectively lost if a case is erroneously

permitted to go to trial.”6 

2 Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985)).

3 Manis v. Lawson, 585 F.3d 839, 842 (5th Cir. 2009); see also White v. Balderama, 153

F.3d 237, 240 (5th Cir. 1998) (per curiam) (“[W]e possess jurisdiction to hear an interlocutory

appeal challenging the materiality of the fact issues that led the district court to deny

summary judgment but . . . we lack jurisdiction to hear interlocutory appeals challenging the

genuineness of those fact issues.”).

4 Manis, 585 F.3d at 843.

5 Thompson v. Upshur Cnty., TX, 245 F.3d 447, 456 (5th Cir. 2001).

6 Mitchell, 472 U.S. at 526.

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The qualified immunity defense has two prongs: (1) whether an official’s

conduct violated the plaintiff’s clearly established constitutional rights, and

(2) whether the government official’s conduct was objectively reasonable in light

of clearly established law.7 Once a defendant pleads qualified immunity, the

plaintiff has the burden to rebut this defense by establishing genuine issues of

fact as to both prongs.8 The plaintiff must offer more than “mere allegations” in

order to negate the defense of qualified immunity.9“A court may rely on either

prong of the defense in its analysis” and may conduct its inquiry in any

sequence.10

We consider only the second prong of the qualified immunity analysis

because it resolves this appeal. Thomas did not raise a material dispute as to

whether Officer Nugent’s actions were objectively reasonable in light of clearly

established law. 

The “clearly established” standard “does not mean that officials’ conduct

is protected by qualified immunity unless ‘the very action in question has

previously been held unlawful.’”11 But neither does an official lose qualified

immunity “merely because a certain right is clearly established in the

abstract.”12In other words, the fact that the abstract right to be free from

excessive force is clearly established does not categorically negate qualified

immunity. “Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified

7 Thompson, 245 F.3d at 457.

8 See, e.g., Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

9 Manis, 585 F.3d at 843 (internal quotation marks omitted).

10 Brown, 623 F.3d at 253 (citing Manis, 585 F.3d at 843); see also Pearson v. Callahan,

555 U.S. 223, 242 (2009).

11 Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

12

Id.

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immunity . . . into a rule of virtually unqualified liability simply by alleging

violation of extremely abstract rights.’”13 The “central concept” is “fair

warning,”14 which means that an officer is entitled to qualified immunity unless

“all but the plainly incompetent or those who knowingly violate the law” would

have known that the conduct at issue violated constitutional rights.15

Thomas relies on Bryan v. McPherson16

and Newman v. Guedry17

to show

that Officer Nugent’s use of force was unreasonable. Bryan and Newman,

however, are distinguishable from the circumstances of this case. In Bryan, the

Ninth Circuit described the impact of a taser as paralyzing the muscles

throughout the body and causing excruciating pain.18In light of that holding,

Thomas asserts that Officer Nugent’s repeated tasering was “grossly

disproportionate to the nature of the threat.” However, in Bryan the officer had

stopped a driver for failing to wear a seatbelt and while the driver, Bryan, was

standing beside his vehicle, the officer aimed the taser device at Bryan’s bare

chest in probe mode and, without any warning, tasered Bryan when he took “one

step” toward the officer.19 One of the metal probes lodged in Bryan’s arm, and

13 Manis, 585 F.3d at 846 n.4 (5th Cir. 2009) (quoting Anderson, 483 U.S. at 639).

14 Kinney, 367 F.3d at 350 (internal quotation marks omitted). 

15 Manis, 585 F.3d at 845 (internal quotation marks omitted); see also Thompson v.

Upshur Cnty., TX, 245 F.3d 447, 460 (5th Cir. 2001) (“[W]hen the defendant moves for

summary judgment based on qualified immunity, it is the plaintiff’s burden to demonstrate

that all reasonable officials similarly situated would have then known that the alleged acts

of the defendants violated the United States Constitution.”).

16

590 F.3d 767 (9th Cir. 2009), withdrawn and superseded, 608 F.3d 614 (9th Cir.

2010), withdrawn and superseded, 630 F.3d 805 (9th Cir. 2010).

17

703 F.3d 757 (5th Cir. 2012).

18 Bryan, 590 F.3d at 772-73.

19 Bryan, 590 F.3d at 771.

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it had to be surgically removed.20 The electrical current delivered during the

tasing paralyzed Bryan and caused him to fall face-first onto pavement.21 Four

of his teeth were broken as a result.22

In the present case, there is no indication

that Nugent intended for the taser device to discharge in probe mode. Moreover,

Pikes thereafter failed to comply with the officers’ numerous requests to get up

and walk with them to the police vehicle. The Ninth Circuit’s decision in Bryan

does not clearly establish that tasering Pikes under the circumstances of this

case would constitute excessive force. With regard to tasering in drive stun

mode, the Ninth Circuit, in Brooks v. City of Seattle,

23

granted qualified

immunity in part because unlike probe mode,24 drive stun mode caused only

temporary,localized pain and was authorized by the Seattle Police Department’s

use of force guidelines as a compliance mechanism.25 Likewise here, Officer

Nugent testified that the Winnfield City Police Department authorized taser use

in drive stun mode in the face of passive resistance.26 

In Newman, we considered an excessive force claim against an officer who

had repeatedly tasered the plaintiff.27 The officer asserted he had no reasonable

20

Id. at 773.

21

Id.

22

Id.

23

599 F.3d 1018 (9th Cir. 2010), aff’d on reh’g sub nom. Mattos v. Agarano, 661 F.3d

433 (9th Cir. 2011) (en banc). The final iteration of Bryan acknowledges this distinction as

well. 630 F.3d 805, 820 (9th Cir. 2010).

24 Referred to as “dart mode” by the Ninth Circuit.

25 Brooks, 599 F.3d at 1026.

26 See Gutierrez v. City of San Antonio, 139 F.3d 441, 448-49 (5th Cir. 1998) (noting

that a memo reminding officers of the prohibition of a particular police practice was material

to assessing the objective reasonableness of the officer’s conduct).

27 Newman v. Guedry, 703 F.3d 757, 760 (5th Cir. 2012).

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warning that tasering a suspect multiple times was a constitutional violation

because “there was then no binding caselaw on the appropriate use of tasers.”28

Although we agreed with the officer, we held also that “in an obvious case, the

Graham excessive-force factors themselves can clearly establish the answer,

even without a body of relevant case law.”29

 These factors aid in assessing the

reasonableness of the force used by considering (1) “the severity of the crime at

issue,” (2) “whether the suspect poses an immediate threat to the safety of the

officers or others,” and (3) whether he is actively resisting arrest or attempting

to evade arrest by flight.”30

 

Thomas asserts that just as in Newman, the Graham excessive-force

factors clearly establish the answer in this case such that a body of relevant case

law is unnecessary. But as with Bryan, Newman is also distinguishable from

the facts of this case. In Newman, the suspect had committed no crime, posed

no threat to anyone’s safety, and did not resist the officers or fail to comply with

a command.31

In fact, the plaintiff claimed he was tasered repeatedly despite

never being given any command by the officers.32 The facts in another recent

decision of this court, Ramirez v. Martinez,

33

are somewhat similar to those in

Newman.

34

In contrast, Pikes was arrested pursuant to an active felony

warrant, attempted to evade arrest, was subdued only through the threat of

deadly force, and did not comply with the officers’ repeated requests to cooperate

28

Id. at 763.

29

Id. at 764 (internal quotation marks omitted).

30 Graham v. Connor, 490 U.S. 386, 396 (1989).

31 Newman, 703 F.3d at 764.

32

Id. at 763.

33

716 F.3d 369 (5th Cir. 2013).

34 Ramirez, 716 F.3d at 378.

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in effectuating the arrest. Thus, this case does not provide an “obvious” example

of excessive force such that Thomas satisfied her burden to demonstrate that

Officer Nugent’s use of force was unreasonable under clearly established law.35

Because Bryan and Newman are distinguishable from the circumstances

in this case, Thomas has presented no law to support the unreasonableness of

Officer Nugent’s actions. Thomas has not met her burden to show that Officer

Nugent’s use of force was unreasonable such that qualified immunity would not

apply.36

* * *

For the foregoing reasons, we REVERSE the district court’s denial of

summary judgment and REMAND for dismissal of Thomas’s claims against

Officer Nugent.

35 See Poole v. City of Shreveport, 691 F.3d 624, 625-26, 629 (5th Cir. 2012) (holding that

police officer’s use of force and tasering the plaintiff during an arrest was not objectively

excessive or clearly unreasonable when the plaintiff resisted arrest and did not comply with

requests). Essentially the only evidence in the record about the reasonableness or

unreasonableness of the force applied comes from the arresting and jail officers.

Consequently, although there were numerous tasings, which certainly raises suspicion as to

the excessiveness of force, none of the evidence shows that the tasings were an unreasonable

response under the circumstances reflected in the record before us.

36 See Sama v. Hannigan, 669 F.3d 585, 591 (5th Cir. 2012) (citing Kovacic v. Villarreal,

628 F.3d 209, 211-12 (5th Cir. 2010)) (“Once raised, the burden shifts to the plaintiff . . . .”).

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